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HomeMy WebLinkAboutCC Minutes - 12/12/06 Joint Elected Officials BOARD OF COMMISSIONERS' JOINT ELECTED OFFICIALS’ MEETING December 12, 2006 5:30 p.m. Harris Hall Main Floor Commissioner Bill Dwyer presided with Commissioners Bobby Green, Sr., Anna Morrison, Peter Sorenson and Faye Stewart present. Assistant County Counsel Stephen Vorhes and Recording Secretary Melissa Zimmer were also present. Mayor Kitty Piercy presided for the meeting of the Eugene City Council with Councilors Bonny Bettman, David Kelly, Andrea Ortiz, Gary Pape, George Poling, Chris Pryor, Jennifer Solomon and Betty Taylor present. 1. THIRD READING AND CONTINUED PUBLIC HEARING/Ordinance No. PA 1238/Amending the Eugene/Springfield Metropolitan Area General Plan (Metro Plan) to Revise the Goal 5 Significant Mineral and Aggregate Resources Inventory, Redesignate From "Agriculture" to "Sand & Gravel"; Rezone From "E30/Exclusive Farm Use Zone" to "SG/Sand, Gravel & Rock Products Zone" and Allow Mining on 72.31 Acres of Land Pursuant to the Goal 5 Oregon Administrative Rules (OAR 660-023); and Adopting Savings and Severability Clauses (File PA 05-6151; Delta Property Co.). (NBA & PM 10/18/06 & 11/1/06) Dwyer explained this is a continuation of the proceedings that started on November 1, 2006. He said the purpose of the hearing is to consider and provide an opportunity for all parties to comment on the request for a Metro Plan Amendment that affects 72.3 acres of land. That would change the plan designation from agriculture to sand and gravel and rezone the land from exclusive farm use to sand and gravel and rock products for future mining of the expansion area. He said because this application is for property located within the Eugene Springfield Metro Plan boundary, both the Eugene City Council and the Board of County Commissioners are required to take action. He added because this application involves a Metro Plan amendment and a rezone, the de novo hearing procedures for the rezone will be used to allow new testimony and evidence on the entire application. He said they will use the sign up sheet from the November 1 meeting for those wishing to testify. He indicated that written testimony or evidence may be submitted until the record is closed. Commissioner Dwyer asked if any city councilors or commissioners wished to declare any contact with any person that would constitute an ex parte contact in this matter. There were no ex parte conflicts. Page 1 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T Dwyer indicated the staff report was provided at the November 1 meeting and staff from public agencies were allowed to testify. He said that staff have provided a supplemental packet of materials that have been received since the November 1 meeting. Mayor Piercy opened the Public Hearing for the City of Eugene. Commissioner Dwyer opened the Public Hearing for the Board of Commissioners. Steve Cornacchia, Eugene, spoke, representing the applicant. He reported that Delta Sand and Gravel have determined that they have approximately 10 years’ inventory of aggregate material at the current site. He added at its current rate of production, they anticipate that in 10 years if not more is added to the site, it will mean the end of Delta Sand and Gravel. He said the company had also determined that, with the exception area, the addition of the 74 acres of the expansion area will extend the life of the company for an additional 15 years. He said the one issue the Eugene Planning Commission did not find in their favor was dust. He said they don’t create dust at the mining operation, but at the crusher at the far extreme corner of the property against the river and Beltline. Cornacchia commented that the neighbors in the area of the gravel pit are convinced Delta Sand and Gravel would make their lives miserable if the application is approved. He said they know they could mine the area without a negative impact on the neighbors. He said they have been mining for 40 years. He noted there are homes across from the gravel pit and they dug across the street from the people within the last 15 years without any issues with LRAPA or any regulator agency. He added they received no complaints. He said that was a demonstration of the commitment the company has to being a good steward, professional and ethical in the treatment of the land, and treatment and interface with its neighbors. Cornacchia recalled in 1996 LCDC went through a process where they established new rules for the Goal 5 resource. He indicated those rules were a direct result of continual arguments and opposition whenever there was an aggregate facility proposed for establishment or expansion. He said people believe it is impossible to have this type of operation and a livable community next door. He said they have been doing it for 40 years and the manner in which they have been doing it rendered a positive product to the community. He said there was a lack of negative impact on existing neighbors. He said the process for this has taken a year and there have been no complaints or issues with LRAPA. He said what is most important for the criteria of the Goal 5 Rule is the definition of minimization of conflicts. Cornacchia explained what they are required to do is to demonstrate there is an adequate and significant resource. He said they are required to identify an impact area within which potential conflicts could be identified. He said they have done that. He said they are to identify the potential impacts that will be within the area. He added following that, they need to demonstrate how those potential impacts will be minimized. He said if they have done that, the rules state the elected officials shall approve if they make an affirmative decision. He said the rules provide a tool to use throughout the consideration Page 2 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T of potential impacts. He said the definition of minimization is if the applicant can demonstrate that it meets the requirements of the applicable regulatory agency, then it has minimized the conflicts. He said in the materials they have, the consultant reports on those potential impacts and the conditions the company would have to meet if they were to approve the matter would mean they would have to meet the requirements of each of the regulatory agencies. He indicated the Eugene Planning Commission agreed with them, wherein they agreed that they could minimize all potential impacts except dust. He said on that issue they didn’t do a good enough job to explain how they create dust and how they could minimize dust impacts. He recalled at the last hearing the elected officials were given an exhibit of the Delta Sand and Gravel sample log. He said it showed a follow-up to issues raised by the Lane County Planning Commission that they did not have a significant resource. He said, based on testimony from people who questioned the consultants report on the manner on which the boring samples were taken and what the analysis was and if it was done right, the Lane County Planning Commission accepted that information from an individual who was not an expert, but someone giving testimony over testimony from their consultant, EGR Associates, who are licensed engineers who do the work continually. He said if their conclusion meets the standards, then they have done the job they should do. He recalled throughout the Lane County Planning Commission discussion, that concept was continually raised. He said the Planning Commission stated they couldn’t accept the testimony of the consultants because they were paid by the applicant and it tainted their testimony. Cornacchia noted the sampling test was a resampling and retesting by ODOT and an analysis by DOGAMI. He explained those are the two agencies that are the regulatory agencies for this issue. He said they were told by planning commissioners that they could rely on the consultants and there was nothing from DOGAMI and ODOT. He said because of that, they had ODOT come down to test and retest. He said they took the borings and did their own sample. He said they issued their opinion (copy in file) that the samples demonstrate the deposit is significant and meets the requisite standards as a sample and the requirements as base rock. He said they sent that conclusion to DOGAMI and asked them to respond. And he noted that based upon what ODOT had done, they believed they had a representative sample, and the sample was appropriate for the requirements of ODOT for base rock and meeting the Goal 5 requirements for establishing a significant resource. He believed they met the burden that the agencies that review these had signed off on the significance issue. Cornacchia commented that their consultant reports were criticized by consultants from opponents. He said following the criticisms, they provided them to their the consultants, who rendered the conclusions in the reports. He asserted their consultants rebutted every one of the issues raised by the opposing consultants. Cornacchia stated they identified the potential impacts of noise, groundwater, flooding, dust, impacts on wetlands and air cultural practices. He noted on all six, the planning commissions had the opportunity to review their testimony and evidence and rendered a decision on each one. He said the Eugene Planning Commission found for the applicant on every issue except for dust. He said they found they had a significant inventory of Page 3 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T resource and they found they had identified all of the impacts and minimized or could demonstrate that they could minimize the impacts on all issues except dust. He said they produce dust at the crusher, not where they mine. He indicated that LRAPA issues a permit for all facilities like this. He said they have a discharge permit that limits the amount of material they can discharge into the air shed. He added that limitation comes with a production level limitation and requirements that the pressure stays where it is at, its produces at the level it is limited to, and that they water their haul roads to and from the mining area to the crusher. He noted there are no conditions in the permit about the actual mining. Cornacchia indicated that Delta Sand and Gravel had operated at their facility without a single citation issued to them by LRAPA regarding these matters, except for one last January. He recalled that on that day there were freezing temperatures, and the company had decided to water Division Avenue. He said they were cited by LRAPA for failure to meet their requirements. He added that citation, after discussion with the agency, was dismissed and LRAPA did not issue any type of a sanction for that day. In added in 40 years not once did LRAPA say Delta Sand and Gravel had violated their provisions or requirements. He said the company is responsible, ethical, and committed to meeting its requirements and to operating without negatively impacting its neighbors. Cornacchia recalled the Eugene Planning Commission agreed with them on the issue of the aquaclude but the Lane County Planning Commission did not. He said the aquaclude is intended to minimize the impacts of the groundwater flow. He said the closer they get to west of the gravel pit, the more likely negative impacts to their wells could occur. He said that is a consideration they have to take into account. He said their answer was to build an aquaclude. He said the consultants for the opponents suggested that as water comes through the aquaclude on a day of heavy rain, it would flood the grounds. He said they tried to explain through EGR’s testimony that doesn’t happen. He said ground water would go around the aquaclude. He added to meet those concerns EGR went back to drop the aquaclude at a different elevation that would still reduce the majority of the groundwater but they suggested that the top of the aquaclude would be just above the water level of the wetlands. He said in the event their argument is correct and the water could rise, it would rush into the pit and not onto the surface. With regard to dust, Cornacchia stated the opponents provided testimony from a medical doctor regarding rock dust and the extreme negative and severe health risks of rock dust. He found the testimony to be prejudicial. He said the doctor had not visited the site and didn’t know if the rock dust he was discussing is produced at the wall. Cornacchia stated rock dust is created when rocks are broken. He said rocks are broken at the crusher and it is allowed by law by the LRAPA permit. He commented that they were certain that the testifier had the credentials to give the testimony he gave. Cornacchia said Delta Sand and Gravel is dedicated and committed to the community as a steward of its own land. He said they created a heron rookery and the governor in 2005 presented an environmental award regarding their work with the McKenzie Watershed, the council and their provision for habitat for pond turtles and red legged frogs. He said Page 4 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T the company has been mining for 40 years and the land has been owned by the company for over 100 years. He commented that it was not a multi national corporation; it is not doing anything except what it had been for the past 40 years, and as a family for over 100 years. Cornacchia believed that at the Planning Commission level they had met their burden and could minimize all potential impacts and do what they were doing with the mining previously. Alan Babb, Delta Sand and Gravel, Eugene, stated their application stands on its own merits. He indicated the rules are clear and allow what they are asking for. He said that all goals had been addressed and any conflicts will be mitigated. He said they are asking for only an addition to an existing site. He indicated there would be no change in their operation, no new plants, no additional trucks or truck routes. He said what they are asking for is a longer life for an existing company. He said the land has been owned by various members of the Babb family for over 100 years. He indicated the island they zoned to the north was sand and gravel in 1967. He said the greenway law came in and it took them eight years to solve the issues it brought up. He said as part of their agreement, they gave up 45 acres of mining land to protect the Blue Heron Rookery. He said they have been trustworthy all of their lives. He said they have family wage jobs. He indicated their lowest pay scale is $17.00 per hour and it goes up to $28.00 per hour. He added their benefits are over $700 per month per employee and they are company paid. He stated they are not asking for any public money, but for another 10 to 15 years. Doug DuPriest, Eugene, stated he represented the Narvas. He said by participating tonight, they do not intend to waive the objection they raised at the last meeting. He said there were other issues of concern to the planning commission, including agricultural and wells, groundwater, wetlands, flooding, and the applicants made the point that they supplied another set of the applicant’s documents in the form of a binder. He noted at the Planning Commission hearing, the opponents provided their own rebuttal packet. He said they provided a detailed rebuttal of the evidence before the Planning Commission and legal analysis (letter of March 17). He provided a summary of what the Planning Commissions did. He indicated it lists the steps, the sub issues and the jurisdiction. He noted on Step 2, the Lane County Planning Commission found that the rock was not sufficient. He said in Step 3, with both jurisdictions, the impacts that were of concern were dust, noise, groundwater, wetlands, sensitive habitat and agricultural. He added the Lane County Planning Commission was concerned about flooding. He said neither was concerned about traffic. He said the City of Eugene Planning Commission said no only to dust. He noted the Lane County Planning Commission has concerns as to dust, groundwater, wetlands, sensitive habitat, agricultural and flooding. He said neither had concerns about noise. He thought there were serious concerns about noise that had not been minimized. He noted there was no ESEE analysis related to noise. DuPriest said the question is whether this is the right place. He noted if the elected officials do not agree it is the right place then they must deny it. He said they could try again or try another location. He said the application is based upon a fiction. He said Page 5 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T Delta said they were going to take the same extraction that was buffered from residences by a half mile of their own lands. He said if they move the operation the half-mile there would be no impacts they couldn’t minimize. He said despite the pit, there are many impacts they had not minimized. He thought the elected officials should pay attention to what was missing. He said to comply with statewide planning Goal 5 and the Goal 5 Rule that is the legal criteria for the application, nearly all proposed plan amendments will contain two reports, one is an ESEE report detailing the nature and extent of conflicts and allowing the decision making body to make some decision about to allow conflicts, or limit conflicts; and the other is a Traffic Impact Analysis to show how the state Transportation Planning Rule could be complied with. He said the application contains neither of the components. He asserted that because of the missing information, the application should be denied. DuPriest indicated that Delta Sand and Gravel said they would mitigate all possible effects of the new operations so there would be no net increases in impacts and no ESEE analysis is required. He stated that the one-half mile area that is now open and acts as a buffer between the existing pit and excavating activities will be lost. He added that Delta seriously understated the magnitude of existing problems with respect to the nearest residents to the south. He noted under DEQ rules, houses are noise sensitive uses and should be treated that way He said the Delta’s noise reports overstates the ambient noise levels. He added that Delta’s experts report seriously understates the noise to be produced by the new operation and the most recent memo by their expert ESA presents conclusions without providing necessary assumptions, methodology or analysis. He said that Delta’s proposed noise mitigation is insufficient. He stated since Delta has proposed insufficient mitigation and had prepared no ESEE analysis, the application must be denied. DuPriest stated that Delta had not provided any traffic analysis or study, even though three nearby intersections are below ODOT’s standards of 0.8 volume to capacity ratio. He said that number comes from a traffic study that was submitted to the City of Eugene in another matter that is now pending. He distributed a report from Group McKenzie prepared for the McKenzie Willamette Hospital. He showed the River Avenue ramp merging onto Beltline Road, entering Beltline eastbound at Delta Highway southbound off ramp and entering Beltline Road westbound on Division Avenue off ramp are all in excess of what is allowed. He said by definition any traffic that would be added to a failing intersection is significant. He noted if there are significant impacts on a transportation facility, a transportation impact analysis is required and it should address the area for one mile within the entrance to the mining area. He noted the staff report stated that Lane County transportation planning had waived the traffic impact analysis requirement under Lane Code 15.697(1). He commented that even if Lane County could waive its own requirements, Lane County may not waive the requirements of statewide Goal 5, the Goal 5 Rule or the Transportation Planning Rule. He added the Eugene Code specifically requires TIA’s when certain conditions exist, including “For development areas that abut a street in the jurisdiction of Lane County, a TIA review is required if the proposed development will generate or receive traffic by vehicles of heavy weight in their daily operations. Eugene Code 9.8670(4).” He commented that sand and gravel Page 6 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T trucks are of heavy weight and there was no evidence that the city had waived that requirement. He added that Delta’s employees (before the planning commission) admitted that the actual traffic levels will depend upon market demand for their product. He noted the TIA rule requires that the traffic analysis be done for the 20 year planning period. He said if they were to consider having a new use located next to a residence, a gravel extraction pit would be low on the list. He commented that the most difficult planning decisions that cities and counties have to make are where they have different categories of use coming together and it represents an extreme example of having an industrial use. He commented that the impacts are real and not mitigated and the application should be denied. Jim Nepler, Eugene, commented the only way they learned about the situation was the Lane County Planning Commission told them there would be a hearing about this. He said they didn’t consult with the neighbors. He said he had a personal interest in this issue because his son suffers from serious asthma. He said--despite what is said about dust--dust and diesel fumes create severe conditions for children with asthma. He commented that nothing Delta had asserted regarding air quality was supported with data. He said they were asking to trust them. He said given the potential monetary gains for the applicant, and the quality of life costs, they need to make an honest judgment call about the applicant’s credibility. He commented the application was filled with statements that were untrue. He recalled at the November 15, 2005 Planning Commission, Delta’s attorney said “Delta has complied with all dust regulations for 80 years.” He added in February 2006, Delta stated “They have a proven track record of compliance over the life of its LRAPA permits.” He asked if Delta really never received an LRAPA violation. He said since 1966 LRAPA had received more than 16 complaints from neighbors about Delta’s operations. He reported that the complaints include a 1999 petition signed by over 20 neighbors who were being affected by air pollution and dust created at the existing Delta facility. He said complaints included breathing difficulties from persons suffering from throat cancer and other ailments. He added in the past six years LRAPA had issued Delta’s four notices of non-compliance and a violation for failing to prevent particulate matter from becoming airborne, including the failure to water the facility yard and roadways. He said a copies of the violation notices were already in the record. He said LRAPA’s file on Delta includes a notice of violations. He thought with more homes nearby, the problems would get worse. He said in the past Delta had few neighbors, and those neighbors periodically filed dust complaints against Delta. He said that Delta’s pit expansion would put it a few hundred feet from people who already have serious breathing problems. He said that Delta stated they intended to minimize dust by complying with its LRAPA permit in the future. He hoped that Delta would make the promise in good faith, but said their neighbors had come to suspect that good faith is an attribute that Delta holds in short supply and they aren’t credible. He said they had not curtailed dust problems and didn’t have a plan to do so in the future. He hoped the elected officials would deny the application. DuPriest read a letter from LRAPA in May of 2000. Page 7 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T Joel Norva, Eugene, stated he lived adjacent to the pit. He said he had lived on his property for the past 18 years He said in the past five or six years, the City of Eugene had approved and allowed development of the Silver Meadows addition that has 70 new homes. He said when that was done, they cleaned up the waterway that had not been running for the past 18 years, but now runs heavily. He indicated it runs through Silver Meadows to the back of Albertson’s Supermarket on Division Avenue. He thought the aquaclude would cause greater saturation of the land that would last longer. He thought the jobs that are there now will be there in the future. He didn’t think 135 jobs would disappear, the jobs would be there ten more years and after that the same number of jobs would be in the community for digging gravel no matter where the pit is at. He commented that they have another 20 years or more to rehabilitate the pit. He stated that the noise of the pit bothers him. He said when they move to 150 feet from him and his neighbors, the noise will be louder. With there being a conflict, the planning commissions voted 11-0 that it is a conflict and whether it could be mitigated was not the case they were concerned about. He noted the proposed pit is located adjacent to a new elementary school. Mark Reed, Mineral Resource Geologist, Eugene, said his interest was helping to ensure the integrity of scientific input in the making of public policy by adherence to the rules established to protect their best farmland. He said his opinions are founded on 30 years of experience as an economic geologist, including 25 years as professor of geology and geochemistry at the University of Oregon, and three years of full-time work for the Anaconda Cooper Company in Butte, Montana where his responsibility was to decide where to drill holes for exploration of mineral resources, logging of the bore hole cuttings, interpreting drilling results and to decide what sample to take and how to mix samples from a drill hole to make composite samples. He said that was a key issue with regard to the significance question in this case. He said the general sampling principles are simple, universal and common sense that non specialists could understand. He commented that gravel resource in the proposed Delta Sand and Gravel expansion area fails to meet the significance test under the Goal 5 Rule because six of the samples submitted for testing of quality are not representative samples. He indicated the rule requires representative samples and these were not representative. He added the fundamental failing of four EGR samples is that EGR mixed concrete grade rock from the upper unit that is high quality rock with poor grade rock thereby diluting the poor grade rock with the higher grade rock to get a composite that passes the ODOT test. He added the bottom 35 feet may fail the test, he didn’t know. He said the gravel deposit is divided into two units, an upper unit of high quality and the lower unit with low quality. He said the mixing of the two parts is contrary to well established standards for taking representative samples from this type of resource. He said it was an essential part of the significance determination for a deposit of that kind that the quality of the rock be adequate to justify sacrificing the Class 1 and 2 farm soils on the surface. He stated the reason for the Goal 5 Rule is to make a fair trade for the farm land. He commented that the test of quality is a fundamental importance under the law. He said that was the key issue that needed to be addressed. He said the basics of representative sampling are outlined in a set of national standards from the American Society of Testing Materials, the Army Corps of Engineers and the American Association of State Highway and Page 8 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T Transportation Officials. He said they have established standards for sampling that are clear and objective that when sampling deposits of this kind, one must separate units of rock of different character. He said that EGR mixed the two. He commented if the lower part alone fails the test, then under his reading of the rule, it would mean it would not pass the significance criteria under the rule. Reed stated in response to that criticism, EGR took some new samples. He said they responded by getting laboratory tests on the lower unit alone, but their tests only took six and a half feet of material out of a total of 35 feet. He said that was a failure of representative sampling, as it calls for sampling all of the material over the interval. He commented that all or part of the lower 35 feet of the rock may fail the test. Reed noted in their final rebuttal before the Planning Commission, EGR contended wrongly that the standards “state that it is preferable to sample the rock as processed as it will be used to assure that it will meet the standards in its ready to use state.” He thought that was an incorrect reading of the standards. He said they took part of the standards on the sampling of processed rock. He noted there is another standard that addresses the sampling of rock in the ground instead of rock that had been processed. He said there is nothing in the OAR that would disallow the processing of the rock prior to testing it. He said they brought up the argument in context of trying to justify mixing the full extent of their sample. He said if they process it before they test it, they are biasing the result. He said in today’s testimony they brought up new work by ODOT in relation to the DOGAMI opinion. He commented that DOGAMI in their opinion fails to address the sampling issues he is raising. He said they defer to ODOT. He said ODOT does testing, they don’t do geology. He indicated in his review of the ODOT sampling, that they referred to late in the testimony today, it appeared that is not a representative sampling to address before the closure of testimony. He said from what he had seen tonight, the ODOT samples are not representative because they are not all inclusive. He commented there is a resource of lava that they could mine and they don’t need to take high quality farmland for aggregate. Dr. Steven Kimberly, Eugene, stated he is a board certified specialist in internal medicine and works full time for WebMD creating health risk appraisals. He reported for the past ten years he had specialized in health risk evaluations and research. He stated he had 25 years as a physician. He discussed rock dust. He said that rock dust pneumoconiosis is the name for the disease in quarry workers and others who have been exposed to significant amount of rock dust over a significant period of time. Rock dust pneumoconiosis is a type of emphysema. He said there are two measures of dust they use for evaluating particulate matter: PM 2.5 and PM 10. He commented that particulate matter of that size is invisible to the naked eye. He said there would be no assurance that that dust was not being carried as PM 10 as far as ten to thirty miles and PM 2.5 particles could travel farther. He said PM 10 particles are larger and tend to get stuck in the sinuses and the upper airways and don’t make it down to the lungs. He added PM 2.5 goes down into the lungs and can cause significant lung damage if enough is breathed in. He explained there is a difference between the organic dust they see from agriculture and inorganic dust that is rock dust. He said that inorganic dust cannot be broken down by Page 9 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T the body and is more harmful. He noted on the assessment of the haul road, it states that 39 tons of uncontrolled PM 10 dust would be created on the haul road per year. He added .5 tons of PM 2.5 would be created on the haul road each year. He didn’t think they could crush thousands of pounds of rock without creating dust. He said the majority of the dust is invisible. He wanted to raise public awareness about the health consequences of rock dust. He stated that rock dust is a significant health hazard. He thought there would be increased sinus and respiratory infections and there could be the development of emphysema. He didn’t think keeping the material moist would completely eliminate all the small particle rock dust that could cause health problems. Art Noxon, Eugene, stated he is a state licensed acoustic engineer in Eugene. He distributed information on the summary of his work. He said he was trying to clarify the work of the consultant for Delta, to straighten out their work and be clear about the calculations. (Copy in file). He said that DSA was not clear about the methodology, they made gross errors in the calculations and assumed the quietest noise source to be the source, instead of the loudest. He asserted they confuse and create mathematical models that don’t exist and have no foundation in the laws of physics. With regard to the memo by DSA, that addresses a new regime of noise sources that now have to be DEQ compliant, the noise from the rock will be regulated by DEQ. He noted there is as much regulation on the trenching rock as there is on the pit rock. He reported that DSA submitted a two and a quarter page memo that says nothing and they expect that to equal three quarters to one inch material they had submitted for the pit mining operation. He noted the equipment they are using for the trenching is the same equipment they are using in the pit. He said there is zero support for information provided from an engineer’s viewpoint about how the trenching operation has become DEQ compliant. He said they now have four excavators on site, twice as many as was originally proposed to be on site and no mitigation plans for it. He stated there is no basis to conclude that the mining operation will meet and comply with DEQ standards. Robert Funk, Eugene, stated his house is within 900 feet of the subject area, putting him at the impact zone, which is within 1500 feet. He added it could also be brought out to 2400 feet. He said they have 70 houses in the new subdivision. He noted they have added a substantial amount of vehicles. He said in addition to the vehicles there are trucks coming out of the quarry. He said DEQ establishes the standards but the funding they have does not allow them to enforce those decibels. He noted the area is located in FEMA’s 100 year flood zone so the water is already high. He thought the construction of the pit would last approximately two to three months. He stated EGR never stated the distance on how far the aquaclude is from the property lines. He said it shows the water table does rise. DuPriest indicated the applicant has serious problems in terms of its proof as to the quality of its rock, and the amount of noise it would cause the nearby neighborhood, and the traffic impacts and the health effects of dust. He said those are the same concerns the Lane County Planning Commission (with the exception of traffic and noise). They are important and he urged the elected officials to consider them carefully. He said the methodology of the initial noise test was for Delta to put some equipment out in the area Page 10 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T that is not being mined and run it and go to places offsite to measure it instead of having their receptors behind the houses. He said they created a test situation where they elevated the existing background noise. He said they would keep the amount within ten decibels above that. He indicated what Art Noxon’s report said is they are getting two sets of ten decibels and the increase from the current ambient. He said the noise study they have doubles the amount the DEQ allows. He thought the application should be denied. Sorenson asked what sampling Christenson was able to do of the top layer. Christenson said they had three samples: top layer with the lower layers. He said there was actually a fourth sample from the pit wall. Sorenson asked if the sampling technique he performed was in compliance with DOGAMI, ODOT and ASHTOS standards. Christenson said there are a number of different standards they could use and none are referenced by the OAR that prescribes how it is to be. He said it only says representative. He said it is their responsibility as a licensed geologist to take their expertise and apply it to this. He added it is their responsibility to make sure they do it in a manner that is consistent with the way the resource may be used. He believed Dr. Reed was in error in the way he had read both the standards on how that is to be done. He said they also took standards across the bottom. He noted not once did any sample fail or come close to failing with base rock standards. Sorenson asked if the proposed pit is further away from the river. Christenson said when he sees the rocks, they are the same at any level he looks at them. He said they have to be able to demonstrate that there is rock throughout the entire 60 foot level, it doesn’t necessarily all have to pass the test. He said it has to be minable and useable through the depth to meet the standards of the OAR. Christenson indicated the testimony he heard rebutting the work they had done is primarily a point of view trying to demonstrate they shouldn’t be disturbing farmground. He didn’t think it directly pertains to what the OAR actually says, its intent or the intent of the testing to be done. Sorenson asked why an ESEE analysis was not presented. Christenson responded that the application doesn’t require the ESEE analysis unless it has been demonstrated or presumed that the mitigation cannot be done. He said it is the next step but it is not required at this step. Alan Babb, Eugene, recalled that Dr. Reed spoke mostly about EGR and that he didn’t like their sampling. He said subsequent to that they had ODOT come in and they did not touch the borings, they pulled their own samples and made their own analysis of the Page 11 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T material. He added they checked with DOGAMI. He said that Dr. Kimberley has made no connection between rock dust and their excavating. He stated their excavating does not create rock dust. He said that any rock dust they produce is produced by the plant when their crushers actually mash up rock. He said that is covered by LRAPA’s permit. He noted there is a limit to how much they can produce. Avon Babb, Eugene, said they had only received one LRAPA citation at Delta Sand and Gravel and that citation (as Cornacchia mentioned) had been dismissed. He noted the others had been at construction sites at other places. With regard to traffic, their plant production and traffic will not change or increase. He said they are permitted by LRAPA and they have a cap on how much rock they could produce and sell each year. He said he is co-owner of Delta Sand and Gravel. He said the Babb family has owned most of the property since the 1860’s. He indicated that his brother started Delta Sand and Gravel in 1965. He believed they had met all the state requirements for Goal 5 that was set up to protect aggregate resources such as theirs. He said if they met the requirements they could keep extracting gravel. He said it was ironic that the new homes were built west of their property and the owners did not wish them to expand. He indicated that the owner got the property zoned for single family residences. He said they cleared the site and installed the utilities. He said they are good stewards of the land. He indicated they set aside 45 acres for a Blue Heron rookery. He said his site is available to the community as a gravel fresh rock ready mix concrete source and a place to leave excavation materials. He stated it saves the community money, time and fuel. He commented the farther away a resource is, the more costly it is for everyone. He explained the citations that were mentioned previously were all construction sites away from Delta Sand and Gravel. Clyde Beet, Eugene, stated he is a farmer who farms his property next to Delta Sand and Gravel. He commented that he had not seen the negative impact that Delta Sand and Gravel had on farming. He said his well went dry and he and Delta resolved the problem. He thought the dust complaints that Delta had were from him because he is a farmer and is allowed to make dust. He commented that Delta doesn’t do anything he doesn’t see. He thought people were making statements that were less than factual because he is in the area every day. He thought elected officials should follow the scientists and the experts and not the people who claim to be experts. Dan Branton, stated he is employed by the Babb family and is impressed by them. He said if they eliminate competition that prices will go up and it will affect the public who will have to pay more. He commented that the people who moved into the new housing tract knew a gravel pit was there. Mike Altucker, Eugene, spoke in favor of Delta Sand and Gravel’s application as a neighbor, a competitor and as a Goal 5 veteran. He said the sand and gravel industry is an industry people can’t live without. He noted they are currently using ten to twelve tons per person per year in Lane County. He commented that gravel is found where nature puts it. He urged the Board’s consideration to approve Delta Sand and Gravel’s application. Page 12 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T Ken Latham, Eugene, stated he has been a Delta employee for 11 years. He thinks Delta has gone out of its way to be a good neighbor. He said the company practices good stewardship of all of its materials and it supplies the needs of the community. He commented that aggregate is the life stream of the infrastructure. He said without having the rock they wouldn’t be able to build roads. He thought if they shut down or limit Delta’s resources, then through supply and demand the prices will go up. Kate Pearly, Eugene, stated she is a farmer in Santa Clara and is an agricultural educator in the community. She commented that without food no human could move a machine and without food no one could live. She stated the soils on the site are made up of four different soil types. She said the assertion that their site was unsuitable for agricultural was false. She thought they should look at the land for long term production of food, not just its current neighbor. Richard Ruth, Eugene, said he is an environmental consultant. He said he had been listening to the testimony about the dust issue. He thought it was overridden by sensationalism. He noted it was the same crusher and the same location with the same limits by LRAPA. He thought the issue of health and dust didn’t make sense because what they currently have is what they are going to have in the future. He indicated the Mine Safety Health Administration regularly monitors the operation for dust and there had never been a violation for dust issues. With regard to modeling, he said Delta took into account testimony and concern about whether modeling should be done. He said there wasn’t a lot of dust to be able to model. He indicated that LRAPA did a model and it was submitted into the record on November 1, 2006 and they modeled all the haul roads in the operation for expansion and LRAPA concluded that the modeled impacts from each haul road added to the ambient monitored concentrations is below the PM 10 National Ambient Air Quality Standards. He said showed Delta Sand and Gravel met the standards. Sue Palmer Boyd, stated she worked at Delta Sand and Gravel for 18 years. She planned her retirement around Delta and didn’t want to start over. She commented that this was a good location with competitive prices and it was good for the economy. She asked the elected official to approve the expansion. Sorenson asked Christenson about aspects of the groundwater wherein the Lane County Planning Commission determined that the impacts involving groundwater could not be minimized to acceptable levels. He asked about that finding. Christenson responded that it was his understanding that they were concerned about the hydraulic barrier they had built into the ground, that it would cause flooding. He said it is hydralogically impossible for the groundwater barrier in the ground to cause flooding at the surface of the ground. He said the only way they would have surface flooding is when there is a surface water flood. Pape asked what they could grandfather, or what they could take with regard to dust, noise and groundwater and transportation impacts. Page 13 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T Howe recalled the Board of Commissioners and the city councilors have heard the presentation by the applicant and opposition and the planning commission had heard the same information, but it had been refined on both sides for tonight’s presentation. He said the planning commission came up with recommendations. (Copy in file). Pape asked what they could accept with regards to traffic impacts and noise levels. Howe said for each identified impact, there has been information presented that those could be minimized. He added if they are minimized within the required regulations, then under the Goal 5 Rule, the impact has been minimized. Pape asked if a minimization meant a smaller increase in it of to drop below what existed prior to the application. Howe responded that it meets the agency standard. Pape recalled there was testimony regarding agriculture. He asked if that should be taken into account. Howe said that impacts on agriculture need to be significant to the point that they are affecting the farm management practices or increasing the cost for those farm management practices. He said if they thought the operation would have those types of effects, he said then those would need to be minimized. Pape asked if there were Class 1 or Class 2 soils if they take into account taking the soils out of farm production or if it was not a criterion. Howe said it is not a criterion. He said the standard under the rule says if it is certain soil classifications then it can’t be of a certain depth and the volume of the aggregate resource has to be significant. He added if it is significant and meets the volume and depth requirements, then that eliminates whether it should be farmland or sand and gravel. He added if it is a significant sand and gravel resource, then that is the direction they should go. Morrison noted there was an e-mail about a question raised regarding the subject site that was included in the City of Eugene’s residential land study in 1999 from Dan Revelle. She asked if it was really included in the residential land study. She indicated they were supposed to have a specific supply of those. Kurt Yeider, City of Eugene, didn’t think it would have been included because it is located outside of the urban growth boundary. Morrison recalled in Nefler’s testimony he was commenting about the complaints that were filed with LRAPA. He mentioned one was Irvington. Morrison said Irvington was Page 14 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T not near the site. She said the complaints are not on the site itself but construction sites separate from the application. Bettman asked how many cubic yards of aggregate are estimated to be on the 72 acres. Cornacchia responded that DOGAMI assumed an 82 foot thick average depth of the aggregate layer that represents 15 million tons of aggregate. He indicated that was for the entire site. He said that included both the area of the aquaclude and all 74 acres. He noted that was 7 million cubic yards. Bettman asked about the traffic impact analysis Lane County waived and the requirement on the assumption that there is no impact. She asked how the City of Eugene would require a traffic impact analysis. She asked if they had the ability to require a traffic impact analysis and how they would do that. Yeider didn’t recall if that section of Division Avenue is within the city or the County. He said the city would be limited in its ability to do a TIA because all the activity would be happening outside of the city. He thought the exception might be for access rights on Division. He said he would get back to Bettman with that information. Green asked which agency approved the subdivision. Howe indicated that the city approved it. Green asked how they approved the subdivision if it had a close proximity to an existing gravel pit. Yeider indicated the gravel pit doesn’t exist near the new homes. He noted there were gravel operations near the older homes near Beaver Street. He said the site that is visible impacts the new homes and was zoned for agricultural. He said the Metro Plan offers a little buffer between the urban and gravel interface. He said the Metro Plan stated there would be a buffer. He said in the draft Metro Plan of the 80’s this expansion site was known to have potentially significant aggregate resources. Dwyer asked which way the prevailing winds go. Ruth indicated there had been two submittals with wind modeling that was done by LRAPA on November 1 and March 17 hearing there was information submitted. He explained there is a summer winter difference. He noted in the summertime when there are dry conditions the winds are from the north. He said there is only 4.37 percent of the time the wind blew from the east, east northeast and the east southeast, that would put it into the Silver Meadows subdivision. He indicated there is limited wind exposure for the people. Green asked if there had been any past regulations or complaints by DEQ. Page 15 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T Cornacchia responded that they did a search of company records regarding complaints received and citations issued. He noted the only citations are the frozen road on Division and the other three were citations by LRAPA on construction sites. They were for tracking mud onto the street and not having a load covered. He said it had nothing to do with the mine operation or the crusher. Sorenson asked about page 6 of Noxon’s report on noise. He said Noxon’s report stated that Oregon law currently protects degradation of the community ambient noise standards of up to ten decibels. He asked how Noxon determined that Delta should have added 21 decibels of noise. Noxon responded he determined it by reading their report. He said they said they have an ambient noise level of 39 DB and they have a right to make noise up to 49 DB. He said they added 10 DB and claimed the ability to generate noise to the level of 59 DB. He thought they were using their own noise floor as their right to make that much noise on the neighboring property. He said they said when they move into the area they could raise the noise level 10 more DB. He said that results in the loudest rock quarry the state could have and still be in compliance. Sorenson asked if they would violate the DEQ noise limit with what they are proposing. Noxon indicated they are proposing to raise the natural non-Delta noise ambient level by 21 DB. He commented that that was an arbitrary decision they were making to allow them to move into the area. He stated they haven’t shown any analysis that the trenching operation and the pit could meet the DEQ compliance. He thought their paperwork submittal needed to be readable and confirmable. He said it was summaries and conclusions. He noted there was no engineering report. Green asked if he was opposed to the mitigation plan offered by Delta Sand and Gravel and the minimization process. Noxon said the mitigation process is based on assumptions and the assumptions are what he takes exceptions to. He said the analysis and method of modeling was incorrect and not based on engineering principles. He thought they were trying to get around the letter of the law. Green asked how many complaints the company received around noise. Noxon responded that the quarry has been operating more than a quarter of a mile away from where the houses are. He said they are moving their operation into a quiet neighborhood. He said trying to evaluate whether their operation in a noisy environment where the houses are far away from the operation when they are encroaching into the neighborhood is not a good way to say they are running a quiet operation. He said the noise of the freeway dominates the noise field in the residential area that is closest to edge of the pit. Page 16 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T Bettman asked if the sound was measured within 1500 feet from the residences. Noxon explained that wasn’t a DEQ rule. He said the impact area of a quarry is 1500 feet past it to see if there are any problems. He said the acoustic engineering company that was hired to assess the quarry’s proposed plan for expansion found that the impact zone wasn’t 1500 feet as far as noise was concerned. They found that it was approximately 850 feet. He indicated it was in a report of June 14, 2005. Bettman asked if the sound impact was evaluated from the aquaclude trench. Noxon stated in the memo dated October 27, 2006, there are two figures. He said they say there is a zone of set back line of 475 feet for the average sound level violation and there is a 250 foot for the short time high level voice standard. He said it is based on an inaccurate model of the noise that is being generated. He said the setbacks aren’t valid setbacks. He stated they had not presented any real noise study associated with the trenching process. He said the noise generated in the trenching process uses machines of similar size and character and power as the ones in the pit. Bettman asked about impacts of the mining operation and aquaclude not previously evaluated. Yeider said for some of the impacts the entire site was studied. He recalled with the discussion of noise, that there would be a temporary impact when the aquaclude was dug and refilled and a sound berm was added to the project description. Bettman asked what happens if Lane County and Springfield want to have a dissolution of LRAPA, so in a year there is no LRAPA to monitor or enforce the assumptions included in the report that showed how they mitigated. Yeider thought the enforcement branch would go to DEQ. He didn’t know if LRAPA had different standards than DEQ or if DEQ has as many local enforcement abilities that LRAPA might have. Bettman asked if that was a viable assumption to say that the mitigation had been achieved based on the fact that LRAPA is an entity that could monitor. She asked if DEQ would have to be included in the mitigation. Taylor thought they needed someone from LRAPA present. She thought there were complaints and then they are forgiven. She said because it is being used as evidence, they need facts. Sorenson asked about the quality of the sampling and what was wrong with the sampling. Reed responded that the upper 25 feet is so high in quality that it is a substantial resource and profitable to produce. He said the 60 foot rule was put together by DLCD to establish a quantity to justify destroying the soil at the top. He said the standard for the Page 17 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T 60 foot rule is that it meet base rock, not concrete grade quality. He indicated they are currently mining to that depth and it is economically worthwhile to do so in the existing pit. He added they are able to process the rock before they sell it and they could upgrade substandard rock to rock that passes the base rock standard, and it could be of economic interest to them. He said the question remains that to whether the lower section actually passes the base rock standard. He said it was a mixed sample and it made it invalid from the standpoint of being representative because they mixed the high quality with the low quality and they couldn’t tell whether the deeper part passes the test. He thought it made the sample invalid. Concerning the 74 acres, Sorenson asked if three bore holes were adequate. Reed responded it was likely to be adequate. He thought the quality of the rock was not good. He thought the quality of the samples they tested passes. Bettman commented that given the fact of their decision making rests on specific criteria, (one being that there be a significant resource, and the significant resource issue is so important to this application), why when there is a broad range of standards to choose from for sampling would they pick one that is not the highest standard and one that could be questioned by the opponents so easily. She stated there are certain standards to adhere to make sure they have a pure outcome. She said since the 60 feet of quality aggregate is the standard that determines whether the resource is significant enough to sacrifice the prime farmland and create impact on the residential neighborhood. She said the criteria is not whether it is a good company or great jobs, it is based on very specific objective criteria. She asked why, if they are so positive they have a significant resource, wouldn’t they choose the highest standard for sampling. Christenson said they did choose the highest standard of sampling. He said they followed the ASTM, the Corps of Engineering sampling protocol. Bettman asked if what Reed described was the industry standard. She asked if people used that sample. Christenson responded that they do use the ASTM and the Corp of Engineering sampling standards. He recalled what Reed submitted was the standard for quarry rock that is not appropriate in this case as it is aggregate and they didn’t use that standard. He said they had also gone through the Goal 5 and there was a different set of standards they were supposed to adhere to by Reed’s testimony and they adhered to his previous testimony. He didn’t think Reed wanted to see a gravel operation disturb farm ground. Bettman asked if he was confident it would have shown that there is a significant resource. Christenson said it does. Bettman asked why he didn’t do the sampling the way it was described. Page 18 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T Christenson replied that it was the first time that Reed said that composite sampling, taking a broad area to be sampled together is what they were supposed to do. He recalled before they were supposed to take discrete samples from various levels. He commented that it is the same rock they have been excavating and have been selling as base rock for the past 40 years. He was confident the rock would pass the base rock standards. Morrison asked if DOGAMI was accepting what had been presented, if they had the initial permit after the County takes action from the state level. Reed responded that they issue a permit for mining in relation to the mining itself. He noted they don’t pass judgment on the significance issue. Morrison asked if they should challenge DOGAMI. Reed indicated that DOGAMI was addressing the drill hole spacing as whether that was adequate to demonstrate continuity. He added that DOGAMI specifically does not address the sample quality issue. He said that was a mistake on DOGAMI’s part. He said that ODOT was not in a position to determine from a geologic perspective whether the samples are geologically representative. He said it was a geologic issue. He commented that it was a straightforward issue of looking at the law. He added the rule requires representative samples and none of those entitles, ODOT or DOGAMI or EGR has argued based on citations of external standards that their sampling methods met those standards. Pape asked if he had to meet the ORS requirement. Reed responded the ORS requires a representative set of samples meeting the ODOT base rock standard. He said the rule doesn’t state it. He said it is not addressed in the rule explicitly. He said the question is what is a representative set of samples. He said that is what he had done. He went to existing national standards. He said ASHTOS has a statement about what it is. He noted a key statement is separating material of distinguishable physical and visually distinguishable properties. Pape asked if Chrishtenson complied with the standards of ASHTOS. Reed believed Christenson’s position is the standards referred to how to sample processed rock. He said they wanted to determine if the rock met the requirement for the construction site. He said the issue is whether the rock in the ground meets a set of quality criteria. Pape asked Christenson if he had to prove the rock in layers to get a significant sample. Christenson commented that was an argument that Dr. Reed has used previously. He actually argued that the top 35 layers was as far as they could go because it was distinguishable from the other and the OAR said it has to be the mass and the rock Page 19 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T changed and they couldn’t count any of the gravel below that. He said that turned out neither the way LCDC or the County Commissioners determined at that time it was determined to be done, it was to count all the rock in the mass from the top to the bottom. He noted that all of the standards that are being referred to all start with that the geologist is to use their professional judgment for the materials to be used to do the sampling programming. He added it goes on to discuss distinguishable layers. He agreed if they moved from the gravel above to the bedrock to sample it if they are going to mining the bedrock. He indicated that they weren’t intending on doing that, they were going to mine the gravel. He commented as a professional geologist he would be remiss if he didn’t recognize they are operating and using the gravel from top to bottom. He said it is common to mix the rock for sampling. He said in the standards for the rock itself, not the pre processed rock sampling, it is best if they actually sample the processed rock they are going to use instead of the raw material. He said they sampled the raw material and it still meets standards. Cornacchia recalled there was a statement made that the elected officials were placed in position to decide between experts on the issue of significance. He said in this case they have Christenson, who is. He didn’t believe that Mr. Reed was an expert under Oregon law. He understood that geologists in Oregon had to be licensed and to give expert testimony, someone needs to be licensed. He thought it was possible that Reed could have become licensed since the Eugene Sand and Gravel application, but at that point that issue was raised. He noted in the appeal of the Eugene Sand and Gravel application, there was a variety of assignments of error and one was that the Board of Commissioners did not accept Dr. Reed’s position. He said that LUBA found that was not an appealable error. He understood when Dr. Reed was questioned by his licensing agency, he said he was not given expert testimony, that his testimony consisted of a political speech. He commented that the impression has been given that at no time was any sampling done in a manner which sampled the different layers. He said they went to ODOT and DOGAMI was for their independent testing. He noted in the packet of November 1, were the first three ODOT reports are the different tests. He stated each of them had the following conclusions: “Samples submitted is representative of native aggregate material. Test results meet base aggregate specification. “ Section 02630.10(c ) 2002 Oregon Standards Specification for Construction. He said those were the rules from the regulating agency. He indicated the sampling was done in three layers: from 3 to 30 feet, from 61 to 67 feet and from 76 to 85 feet. Cornacchia commented they were seeing false arguments. He asked the elected officials to read the ODOT report. With regard to the traffic analysis, he said they did one. He indicated they were not going to create any new traffic, as there will be no new trucks. He said they are not asking to create a new operation, they are asking for a continuation of their existing operation. He recalled that LRAPA has a production level on them and they cannot produce more rock than the permit allows. He said that Lane County transportation looked at the analysis and agreed with him that with no added trucks, there is no impact. He added that both planning commissions agreed with them. Page 20 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T Kerry Stanlee, Beaverton, wondered why questions went to Mr. Noxon instead of the applicant relative to the study that was done for the applicant. With regard to the memo that was generated on October 27 that was a response for a request for them to consider the construction of the aquaclude as mining activity. He recalled that originally the aquaclude construction was considered construction and under the DEQ regulation, the noise from construction activity is exempt. He indicated it was not studied at that point. He said when the question came up at the first hearing, if it is construction if the material is going to be excavated and some of it sold, they were asked to determine what would be needed to mitigate the noise from the activity if the county and city decided to consider it was excavation instead of construction. Dwyer indicated they would be leaving the record open for any party to respond to items submitted during the previous open record period including the public hearing to have the opportunity to respond. Stanlee indicated the memo was generated to address the question of what mitigation would be required if the aquaclude construction was considered excavation instead of construction and considered non-exempt from the noise regulation. He said they looked at the use of an excavator and a front end loader, not simultaneously. He determined that it was a 980 H frontend loader that mitigation would be required when the equipment was within a certain distance of residences. He indicated it differed from different parts of the site because of the ambient degradation rule. He said when Noxon stated they didn’t put the data in for the analysis of the 330 L excavator, an oversight was made. He said the 330 L level is 73 DBA at 50 feet for the record. He had in the memo that the frontend loader was 72 DBA at 50 feet so the source data was there. He said using the same analysis for the original calculated, they came up with the height of the berms required for different locations. He stated the aquaclude would not be constructed at one time, it would be as needed to open more areas. He commented it was not a long term operation. Stanlee said all questions the elected officials might have are answered in what they submitted. He stated Noxon brought up the issue about the ambient degradation rule and how they went to generate an ambient that was not normal. He noted in the rebuttal materials there is a letter from John Hector who was the manager of the DEQ noise and enforcement section for 11 years. Stanlee indicated Hector reviewed what they did and he wrote into the material that this procedure was acceptable. He said the area where they had an excavator operate, was an area they do current operations at. He recalled on the first day they were out there it wasn’t operating. He said they had the measurement made at that time. He said they looked at what was the representative of the conditions the residents experienced now. He said they provided reference data and it is in the report. Piercy said they would keep the record open. She noted period one of the record is open for submittal of additional written information by any party, including the applicant until January 8, 2007 at 5:00 p.m. She added that period two is that the record is open for any party to respond to items submitted during the previous open record period to January 22, Page 21 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T 2007 and Period Three, the record will be open for final written argument from applicant to January 29, 2007. Howe noted the time processes expire and the record is closed and then the two bodies need to decide to reconvene jointly to deliberate or to do deliberations separately. Dwyer recommended deliberating separately. Sorenson asked whether there was an advantage in having the City of Eugene deliberate first as they must reach a threshold question first, and if it was necessary for the Board of Commissioners to deliberate, they would. Vorhes thought it was a policy call. He didn’t think legally it was pointing them to one direction. He recalled it had been a past practice of the County to wait for the city to act. MOTION: to approve a Fourth Reading and Deliberation for January 31, 2007. Sorenson MOVED, Green SECONDED. VOTE: 5-0. Mayor Piercy adjourned the meeting of the Eugene City Council at 10:00 p.m. Commissioner Dwyer adjourned the meeting of the Lane County Board of Commissioners at 10:00 p.m. Melissa Zimmer Recording Secretary Page 22 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T Page 23 – Joint Elected Officials' Meeting – December 12, 2006 WD bc/m/06121/T